When EU Heads of States and Governments unanimously gave the European Commission a mandate to negotiate the EU-US Transatlantic Trade and Investment Partnership (TTIP) on 17 June 2013, they understood that these talks would become the leitmotiv of a new era in EU trade policy. However, few people would have guessed that it would primarily be because of transparency. Jolana Mungengová argues that the EU’s approach has undergone an important shift of paradigm and discusses the measures taken to enhance transparency of the TTIP negotiations.

By Jolana Mungengová

Enhanced Transparency in TTIP

The blatant lack of transparency at the beginning of the TTIP negotiations has prompted mounting calls for the release of the negotiating directives (the mandate). The fact that it took the Council more than a year – until the 09 October 2014 – to address this request by making the mandate public appears retrospectively as a serious political misjudgement. The public uproar stirred by then would prove unprecedented and difficult to calm.

When the EU Trade Commissioner, Ms Cecilia Malmström, took office on 01 November 2014, she knew that TTIP and the question of enhancing transparency of the negotiations would be of highest priority. Being responsible in the Malmström Cabinet for this first deliverable was a great pleasure and equally a challenge with regard to three aspects: Firstly, we needed to secure agreement from 27 other Commissioners. Secondly, we had to make sure that measures underpinning the enhanced transparency in TTIP would be the right ones and thirdly, we had to ensure that the EU’s room of manoeuvre and the mutual trust it had built up with the USA would not be curtailed, as this would undermine its economic and political interests.

While the first challenge was easily overcome, as all Commissioners unanimously agreed, the second challenge proved essential to enhancing transparency and thus accountability towards the EU co-legislators, the Council and the European Parliament (EP), as well as civil society and citizens. Addressing the third challenge signified balancing between transparency and responsibility with the ultimate goal of increasing both.

In terms of achievements, we have set up a TTIP website to present EU positions on various envisaged chapters of the agreement under negotiation, including legal texts, to the general public. A variety of reader-friendly materials, including videos, factsheets and a brochure serve to rebut TTIP-related myths and explain its benefits based on facts. More importantly, we have negotiated operational arrangements with the EP for access to TTIP-related documents, including the so-called consolidated documents in which the EU and US positions appear side by side. This will now enable all Members of the EP (and selected EP staff) to directly see and analyse what is being discussed during TTIP negotiation rounds. Within the framework of the Monitoring Group on the US/ INTA Committee of the EP and the Special Committee/Trade Policy Committee of the Council, the EP and the Council will also continue to be briefed before and after each negotiation round by the EU Chief Negotiator.

We have also reached agreement on providing Member States’ officials, national parliamentarians and, where appropriate, regional parliamentarians with access to the same documents the EP has in national reading rooms. These efforts show that we have addressed legitimate requests for more transparency. Nevertheless, we have also ensured that access to classified information takes place in a manner that reduces the risk of unwarranted disclosure by seeking clear commitments from other institutions to take appropriate measures in case of a breach.

A Successful Shift of Paradigm

As a public good that is crucial for better regulation, transparency should apply at all stages of the negotiating cycle. This understanding marks a new paradigm that underpins the European Commission’s approach to transparency as stated in the Communication “Trade for All – Towards a more responsible trade and investment policy” adopted by the College on 14 October 2015.

The first concrete benefit of the TTIP we can already enjoy is greater transparency in the new EU trade and investment policy. It is important to streamline the transparency approach developed in the context of these top priority negotiations as much as possible to other ones. Understanding that both total secrecy and insufficient transparency undermine the legitimacy of EU trade policy as well as citizens’ and companies’ trust in it, comes with the wisdom of fostering greater responsibility in the management of information and handling of classified documents. Undermining EU negotiation strategy would damage the benefits we would like the new policy to bring to all Member States.

Concretely, what are we not publishing online, and why?

Documents that contain tactical considerations made by the EU Chief Negotiator and his team are an example. Confidentiality is needed with respect to these strategic notes as they are not meant to be seen by the US side. Nevertheless, EU co-legislators have access to them in their respective secured reading rooms, and these documents will now also be available to national and, where appropriate, regional parliamentarians. This means that democratic accountability vis-à-vis the elected representatives of EU citizens will remain safeguarded during the negotiation process. As the Commission also intends to publish the outcome of TTIP negotiations online before legal scrubbing and translations into all official EU languages, the public will have the opportunity to read it long before the Council, the EP, and eventually national parliaments, will be asked to decide on it.

Future Prospects and Challenges

The public reflection on the right balance between transparency and responsibility is welcomed. It is through the periodic review of this balance that we can be sure to achieve the right equilibrium. Maintaining the highest possible degree of democratic accountabilitywhile remaining efficient at the negotiation table will remain on the agenda for this Commission mandate, and a legacy for the future. We will also have to ensure sufficient human and financial resources to be able to effectively implement the commitments made. On this aspect, a public discussion has started as well, and the Commission hopes for a good result from budgetary negotiations between the two EU co-legislators. If we want “trade for all”, we also need to make sure to “talk to all” about its benefits.

Jolana Mungengová, is a Member of Cabinet (Policy Assistant) for the EU Trade Commissioner, Ms Cecilia Malmström. She is in charge of transparency and access to documents amongst other thematic responsibilities.

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